Blanco v. State

• Decision Date: 07 June 1984
• Docket Number: 62598,Nos. 62371,s. 62371
• Citation: 452 So.2d 520
• Parties: Omar BLANCO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 520

452 So.2d 520

Omar BLANCO, Appellant, v. STATE of Florida, Appellee.

Nos. 62371, 62598.

Supreme Court of Florida.

June 7, 1984.

Rehearing Denied July 26, 1984.

Michael D. Gelety, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

The appellant, Omar Blanco, appeals his convictions for first-degree murder and armed burglary and the imposition of the death sentence and a separate sentence for burglary. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

Fourteen-year-old Thalia Vezos testified that at approximately 11 p.m. on January 14, 1982, she was in her bed reading at her home in Ft. Lauderdale when she saw a man standing in the hallway holding a gun and carrying a brown wallet-type object under his arm. The intruder indicated that Thalia was to keep quiet. He then cut the wires to her telephone and left the room. Thalia's uncle, John Ryan, appeared in the hall and tried to take the gun from the intruder. Ryan was shot in the scuffle and landed on top of his niece on the bed. The intruder shot Ryan six more times. The intruder then fled. Thalia ran next door to the home of the Wengatzes, where the police were called.

The police arrived at the crime scene at 11:14 p.m. Officer Bull went next door and spoke to Thalia, who described the intruder as a Latin male, between 5'8"' to 5'10"', 180 to 190 pounds, wearing a gray or light green jogging suit, with dark curly hair. Officer Bull sent the description to a dispatcher at approximately 11:24 p.m. A man who lived across the street, George Abdeni, came forward with a report that he had heard shots and screaming and had seen the profile of a person in a gray jogging suit heading east from the Vezos property. This information was contained in a police BOLO that included the fact that the suspect was proceeding eastward.

The BOLO as dispatched described the suspect as a Latin male about 5'10"' in height with a dark complexion, black curly hair, some kind of mustache, wearing a gray or light green jogging suit, and running in an eastwardly direction. Officer Price, who was in the area, positioned his car approximately one and a half miles from the scene in a driving lane facing east on 30th Street next to North A1A to watch for someone fitting the BOLO description. At approximately 11:57 p.m. he saw appellant riding a white bicycle on the sidewalk southbound on A1A and determined that appellant fit the description on the BOLO except for his pants, which at first appeared to be heavy corduroy. He also had full facial hair. Officer Price requested more information. He then followed appellant for approximately one-tenth of a mile before stopping him. The first thing the officer noticed when he got within three to four yards of appellant was that the gray pants were the same material as the top of the sweatsuit. Officer Price requested a backup unit. He asked appellant if he possessed a gun. Appellant replied, "No Ingles." The officer frisked appellant, but found nothing but a necklace and watch which appellant was wearing. When the backup unit arrived, the officers handcuffed appellant and took him to the murder scene. Mr. Adbeni identified appellant as having the same profile and jogging suit as the figure he had seen earlier. Appellant was then formally arrested.

A man's purse containing appellant's ID papers and a watch belonging to Thalia Vezos was found near the door to Thalia's bedroom.

On the day following the murder, Thalia Vezos identified appellant in a line-up as the perpetrator. The Broward County Grand Jury indicted appellant on February 2, 1982, for first-degree premeditated murder and for armed burglary. Trial began on June 1, 1982, and the jury found appellant guilty on both counts. In compliance with the jury's recommended verdict, the trial judge sentenced appellant to death for the murder. He was sentenced to 75 years for the armed burglary.

Appellant first argues that the trial court erred in failing to suppress evidence derived from appellant's arrest in that the information Officer Price received over the BOLO did not furnish sufficient grounds to justify the initial investigative stop. Appellant further argues that, regardless of the legality of the initial stop, the de facto arrest was illegal because there was no probable cause to believe appellant had committed the murder. We disagree. The probable cause standard for a law enforcement officer to make a legal arrest is whether the officer has reasonable grounds to believe the person has committed a felony. The standard of conclusiveness and probability is less than that required to support a conviction. Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). We find that the description furnished Officer Price over the BOLO, coupled with the proximity in time and place to the scene of the crime, furnished reasonable grounds for the officer's belief that appellant had committed the murder and rendered the arrest legal. The motion to suppress was properly denied. There were sufficient grounds for the arrest; ergo there were grounds for the stop.

Appellant next contends that the trial court erred in refusing to admit evidence of an armed robbery which had occurred two weeks before the murder in the present case and at a house that is back to back with the house where the murder occurred. The trial judge determined that the defense hypothesis that the evidence of the robbery would tend to show someone other than the accused committed the murder was speculative and irrelevant. We agree and find no abuse of discretion. Appellant's theory is far-fetched and unsupported. Thalia did not recognize the photographs of any of the robbers and she positively identified appellant as the murderer of her uncle. Appellant has failed to present any reasonable theory upon which the admission of evidence of the robbery would have tended to exculpate him. A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). The test of admissibility is relevancy. Johnson v. State, 130 So.2d 599 (Fla.1961). To be admissible, evidence must be both logically and legally relevant. Wolf v. State, 72 Fla. 572, 73 So. 740 (1917).

Appellant next argues that the trial court erred in making statements on the record in appellant's absence to explain a ruling it had made on the legality of appellant's arrest. In appellant's presence the trial court had previously received testimony and heard arguments of counsel regarding appellant's motions to suppress evidence based on the alleged illegality of the arrest. We find that under these circumstances the reading of statements into the record by the trial court did not constitute an essential stage of the trial mandating appellant's presence. See Fla.R.Crim.P. 3.180.

Appellant argues that the trial court erred in allowing him to call witnesses against his trial counsel's advice, thereby interfering with the presentation of his defense. Trial counsel explained several times to appellant that he considered it not to be in appellant's best interests to call the witnesses, but appellant insisted. The record reflects, and appellant concedes in his brief, that he was told that the witnesses' testimony would be detrimental to his case. The trial court finally ruled in favor of allowing appellant to present to the jury whatever evidence appellant felt was beneficial. Under these circumstances, the trial court did not err in allowing appellant to present witnesses. The ultimate decision is the defendant's. Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965).

Appellant contends that the trial court erred in denying his motion to suppress the identification testimony of George Abdeni and Thalia Vezos. The test for determining the legality of an out-of-court identification is:

(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.

Grant v. State, 390 So.2d 341, 343 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981). In the case of Abdeni, a show-up identification procedure was used. A show-up is inherently suggestive in that a witness is presented with only one suspect for identification, but the procedure is not invalid if it did not give rise to a substantial likelihood of irreparable misidentification under the totality of the circumstances. State v. Cromartie, 419 So.2d 757 (Fla. 1st DCA), petition dismissed, 422 So.2d 842 (Fla.1982). Further, we are mindful that "an identification made shortly after the crime is inherently more reliable than a later identification in court." State v. Freber, 366 So.2d 426, 428 (Fla.1978). We agree with the trial court that no unnecessarily suggestive procedure was employed in this instance. When Abdeni made his identification at the scene, he was identifying only the jogging suit and general profile of the person he had seen. Neither at the hearing on the motion to suppress nor at trial did Abdeni identify appellant as the person he had seen, specifying at both times that he had not seen the alleged assailant's head. We find no error.

Regarding the testimony of Thalia Vezos, appellant argues that the line-up at which she identified appellant as the perpetrator was unnecessarily suggestive in that the other persons in the line-up were physically dissimilar to appellant, creating a substantial likelihood of misidentification. We do not agree with appellant. The record supports the trial court's finding that the line-up was extremely fair and that Thalia identified appellant without any...